The bipartisan sentencing reform bill moving through the Legislature does not address racial disparities. That's a serious omission.

Governor Phil Bryant (R), Democratic Attorney General Jim Hood (D), and other state leaders have joined forces in a bipartisan effort to reform Mississippi’s sentencing laws. This week, the House of Representatives passed HB 585, legislation crafted by a task force appointed last year to reverse Mississippi’s climbing incarceration rate – already the second-highest in the country. Mississippi’s prison population has grown by 17 percent over the last decade, to 22,600, in spite of decreasing incarceration rates nationwide.

Clarify sentencing laws and policies, strengthen community supervision to hold offenders accountable, and improve the relationship between the corrections and criminal justice systems

Control corrections costs by focusing prison space on violent, career criminals and addressing the inefficiencies in the corrections and criminal justice systems

Protect public safety by investing in programs, policies, and practices that reduce recidivism.

Although these are laudable goals, the task force failed to mention one unavoidable problem in Mississippi’s sentencing laws: racial discrimination. From an article I wrote on this topic previously:

If current trends continue, the U.S. Department of Justice projects one out of every three black males born today and one out of every six Latino males will be imprisoned during his lifetime. Only one in eleven white males faces a similar fate.

While Mississippi has the nation’s third-lowest lockup disparity, the figures are still disconcerting. The Magnolia State incarcerates blacks at 3.5 times the rate of whites. African Americans account for 37 percent of the state’s population, but 61.4 percent of its prisoners.

States should pay special attention to racial disparities because they are often caused by so-called “race neutral” policies. From the same article:

For example, statistics show that black Mississippians are three times more likely to serve time for drug crimes than white Mississippians — despite the fact that both groups use drugs at virtually identical rates. Once convicted, nonviolent drug offenders in Mississippi serve nearly twice as long as the average sentence served by inmates convicted for similar crimes in other states. The sale of drugs in Mississippi carries an average sentence of 10.4 years, while possession is punished with 7.2 years. The national average for sale and possession are 5.7 and 4.5 years, respectively.

Since black Mississippians are more likely to be incarcerated for drug-related felonies, they are also more vulnerable to the state’s “three strikes” law. The statute requires that “habitual criminals,” those who have served at least one year for two previous felonies, must receive the maximum term of imprisonment prescribed for their third conviction with no eligibility for parole.

Neither Mississippi’s drug sentences nor its three strikes law make mention of race, yet they result in vast racial inequities.

Other states have realized they cannot adequately reform their criminal justice systems without addressing the uneven racial impact of current sentencing laws. Those reforms have included both proactive or reactive policies. Proactive measures seek to preempt new laws that will exacerbate the problem, while reactive measures create oversight procedures to investigate and reform existing institutions.

The most common proactive approach is the requirement to conduct “racial impact statements” prior to the enactment of new legislation. These statements employ a technique used in environmental regulation. Federal environmental laws require that an agent acting under the authority of the Environmental Protection Agency produce an “environmental impact statement” prior to filling or dredging wetlands in an effort to protect and conserve resources and the environment. Working under a similar premise, Iowa, Connecticut, and Oregon have passed laws requiring an independent review of the racial impact of any proposed bill that relates to sentencing, parole, or probation. Through these statements, state leaders must account for the racial disparities that may result from those proposed laws before they are passed.[1]

States adopting reactive approaches have generally created oversight panels to investigate racial inequities in sentencing. Wisconsin, Illinois, and Minnesota have established commissions to recommend legislative and judicial reforms. For instance, Wisconsin — a state where African Americans comprise 6 percent of the population but 45 percent of prisoners — the commission proposed, and the governor implemented, data-collection and tracking requirements within the justice system, training programs for prosecutors on conscious and unconscious racism and the dangers of institutional bias, and a system for judges to report the pattern or practice of disparate treatment.

If Mississippi’s leaders are serious about increasing equity — not just efficiency — in the criminal justice system, they should amend the current legislation to include both proactive and reactive approaches to eliminate racial discrimination in the state’s sentencing laws.

[1] HB 585 already requires that the fiscal impact of any new criminal law be assessed before it receives a vote. Racial impact statements operate on the same concept.

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Jennifer Kirby-McLemore is a J.D. Candidate at the University of Mississippi School of Law. She received her Bachelor of Science in Biology with a concentration in Sustainable Development from Appalachian State University in 2007 and her Master of Arts in Social Sciences with a concentration in Human Rights and Genocide Studies from the University of Chicago in 2009. After moving to Mississippi in 2009, she taught for three years in public schools and entered law school in 2012. This year she will be working with the William Winter Institute for Racial Reconciliation as a legal intern to research issues related to race and justice.